Similar trademarks examples consist of two businesses in the same industry using trademarks that are alike enough to cause market confusion. Trademarking products and services allows companies to optimize the profit derived from the brands they have worked hard to develop. Registering a symbol or brand name as a trademark allows the trademark holder to sue others who attempt to use the trademark. 

However, the trademark does not keep other companies from inadvertently or purposely confusing customers with a similar mark. Obvious trademark infringement, such as copying the same name of another company, is punishable by law. However, most cases are less cut and dry. Large and small companies alike can be drained of resources by the money and effort required for a trademark infringement lawsuit. In addition, large companies can incur reputation damage if they are accused of trademark infringement and the case is reported by the media.

Likelihood of Confusion

If a competitor is using a similar trademark and you were the first to begin using this trademark, you must prove that customers are likely to be confused by the similar mark. In all cases, the court will use the same standard: under the circumstances, is it probable that consumers purchasing the goods in question will be misled? Several elements are used to make this determination.

Why Identifying Trademark Confusion Matters

It's important to understand why a mark is likely to cause marketplace confusion. For one thing, you don't want to spend the money and time to submit a trademark application which will be rejected because of the likelihood of confusion. Organizations should also be aware of similar marks and whether the use of these marks constitutes infringement

Keep in mind that company trademarks are used to represent the standards and values we rely on as consumers of the company's products and services. For example, if you purchase counterfeit designer jeans that appear to be from your favorite brand but the quality is not as expected, you will lose trust in that brand name. Companies whose trademarks are infringed upon end up losing business through both direct loss of profit from lost sales and the loss of profit from damaged brand reputation.

The Polaroid Factors

Courts often use the standard from a 1961 case involving Polaroid to determine whether marketplace confusion is likely. These factors, as follows, are used as a guide and are not applied in the exact same way by different courts.

  • How strong is the trademark of the company that began using it first?
  • How similar are the two marks in question?
  • How similar are the products and/or services offered by the companies in question?
  • How likely is it that the senior trademark user will eventually expand its operations and create more overlap?
  • Did the alleged infringer act unknowingly or in bad faith?
  • Is there evidence that actual customer confusion has already occurred?
  • How sophisticated is the market for this product?
  • How does the quality of the junior trademark user's goods compare to that of the trademark owner's goods?

Breaking Down the Factors

When you apply for a trademark through the United States Patent and Trademark Office, they check that your application is for a business element that can actually be trademarked and that the mark is distinctive enough to qualify for registration. They will also do a trademark search to see if another similar mark exists in your industry. If this occurs, your trademark application will be rejected. 

You can avoid this rejection by retaining an experienced trademark attorney to perform this search before you send in your application. Dealing with the effects of a trademark rejection can be challenging and costly. Federal circuit courts use many factors to determine whether a likelihood of marketplace confusion exists. 

Strength of the Priority Trademark

The trademark that is determined to be stronger than the other takes legal priority when it comes to protection. "Strong" in this context is defined as advertised more frequently, more unique, and less diluted. Marks are considered weak when they cannot stand alone to represent the brand. The court may conduct a survey to determine whether the trademark in question has secondary meaning for consumers.

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